In the United States Court of Appeals for the Fourth Circuit

Transcription

1 fl""ªø Ê ÔÍÛÓ+ÈÎ ±0Ê ÔÍ 2 ªºÊ Ô+ÒÌÔÒÓ+ÔÍ 7Ê Ô ±8 ÓÌ APPEAL NO In the United States Court of Appeals for the Fourth Circuit On Appeal from the Eastern District of North Carolina KERNAN MANION, M.D. v. Plaintiff-Appellant, NORTH CAROLINA MEDICAL BOARD; NORTH CAROLINA PHYSICIANS HEALTH PROGRAM, INC.; NORTH CAROLINA MEDICAL SOCIETY; WARREN PENDERGAST, M.D., in his individual and official capacity; R. DAVID HENDERSON, in his individual and official capacity; SCOTT G. KIRBY, M.D., in his individual and official capacity; PASCAL UDEKWU, M.D., in his individual and official capacity; CHERYL WALKER-MCGILL, M.D., in her individual capacity; PAUL S. CAMNITZ, M.D., in his individual capacity; WILLIAM A. WALKER, M.D., in his individual capacity; RALPH C. LOOMIS, M.D., in his individual capacity; JANICE E. HUFF, M.D., in her individual capacity; DAVID D. COLLINS, M.D., in his individual capacity; GREGORY W. TAYLOR, M.D., in his individual and official capacity, Defendants-Appellees. MEMORANDUM BRIEF OF DEFENDANTS-APPELLEES Matthew W. Sawchak Thomas H. Segars Paul M. Cox ELLIS & WINTERS LLP Post Office Box Raleigh, North Carolina (919) Counsel for the North Carolina Medical Board, R. David Henderson, Scott G. Kirby, M.D., Cheryl Walker-McGill, M.D., Paul S. Camnitz, M.D., William A. Walker, M.D., Ralph C. Loomis, M.D., Janice E. Huff, M.D., and Pascal Udekwu, M.D. Andrew H. Erteschik John Michael Durnovich POYNER SPRUILL LLP Post Office Box 1801 Raleigh, NC (919) Counsel for the North Carolina Medical Society G. Gray Wilson Lorin J. Lapidus WILSON & HELMS LLP 110 Oakwood Drive, Suite 400 Winston-Salem, NC (336) Counsel for the North Carolina Physicians Health Program, Inc., Warren Pendergast, M.D., David D. Collins, M.D., and Gregory W. Taylor, M.D.

2 fl""ªø Ê ÔÍÛÓ+ÈÎ ±0Ê ÔÍ 2 ªºÊ Ô+ÒÌÔÒÓ+ÔÍ 7Ê Ó ±8 ÓÌ INTRODUCTION The defendants-appellees 1 file this memorandum brief in response to Dr. Dr. challenged the North Carolina investigation into his fitness to practice medicine, as well as the circumstances under which he inactivated his medical license, based on reports that he suffered from a delusional disorder. As shown below, the district court properly dismissed the complaint. STATEMENT OF THE FACTS AND CASE The Medical Board began investigating Dr. Manion after an officer with the Wilmington, North Carolina, Police Department contacted the Medical Board with concerns over Dr. 47, 92, Dr. Manion noxious odors and low 1 (1) the North Carolina Medical Board and the individual defendants who are affiliated with the Medical Board R. David Henderson, Scott G. Kirby, M.D., Cheryl Walker-McGill, M.D., Paul S. Camnitz, M.D., William A. Walker, M.D., Ralph C. Loomis, M.D., Janice E. Huff, M.D., and Pascal Udekwu, M.D.; (2) the North Carolina Medical Society; and (3) the North Carolina Physicians Health Program, Inc., and the individual defendants who are affiliated with this program Warren Pendergast, M.D., David D. Collins, M.D., and Gregory W

3 fl""ªø Ê ÔÍÛÓ+ÈÎ ±0Ê ÔÍ 2 ªºÊ Ô+ÒÌÔÒÓ+ÔÍ 7Ê Ì ±8 ÓÌ Id. 46. Dr. Manion to undergo a psychological evaluation by the North Carolina Physicians Health Program (NCPHP), a nonprofit entity that identifies impaired physicians in the state, takes measures to protect the public from unsafe practitioners, and works to rehabilitate impaired physicians. Id. 20, 52. After an initial evaluation, NCPHP recommended that Dr. Manion complete a comprehensive psychological assessment at one of two mental health facilities. Id. 57. Dr. Manion refused to go to either facility. Id. 67. The Medical Board then ordered him to undergo a comprehensive assessment at one of the facilities recommended by NCPHP. Id. 68. When Dr. Manion refused to comply, the Medical Board brought disciplinary charges against him. Id. 71. Dr. Manion eventually agreed to be assessed, but not at a facility recommended by NCPHP. evaluated in January 2013 by two practitioners of his choosing. Id. 72. One of these practitioners, a psychiatrist, diagnosed Dr. Manion as delusional. Id. Dr. Manion objects that this psychiatrist spoke with the director of NCPHP before the evaluation. Dr. Manion alleges that this interaction resulted in a biased evaluation. Id. 2

4 fl""ªø Ê ÔÍÛÓ+ÈÎ ±0Ê ÔÍ 2 ªºÊ Ô+ÒÌÔÒÓ+ÔÍ 7Ê Ï ±8 ÓÌ Based on the finding that Dr. Manion prosecutor told Dr. Manion that he planned to pursue the suspension of Dr. Dr. Manion was incapable of safely practicing medicine. Id The prosecutor, however, also offered a compromise: If Dr. Manion voluntarily inactivated his license and agreed to a license or take any other disciplinary action. Id Dr. Manion accepted this compromise. He inactivated his license on February 9, 2013, and the Medical Board dismissed all charges against him with prejudice. Id Dr. Manion has since sought to reactivate his license. Id. 78. The Medical Board informed Dr. Manion that, in order to reactivate his license, he must be reevaluated by NCPHP. Id. 79; see N.C. Gen. Stat (a). When Dr. Manion objected to this, the Medical Board offered instead that he be evaluated by a different provider. Compl. 80. Dr. Manion declined. Id. On these allegations, Dr. Manion filed this lawsuit, seeking injunctive and declaratory relief to undo the inactivation of his license and to reinstate that license. He also sought money damages. He alleged violations of his rights under 42 U.S.C and 1985, the Americans with Disabilities Act (ADA), and state tort law. 3

5 fl""ªø Ê ÔÍÛÓ+ÈÎ ±0Ê ÔÍ 2 ªºÊ Ô+ÒÌÔÒÓ+ÔÍ 7Ê Î ±8 ÓÌ All defendants moved to dismiss. The district court, after a hearing, dismissed Dr. August 14, DE 66 Dr. Manion was represented by counsel before the district court. SUMMARY OF THE ARGUMENT T should be affirmed for these reasons: 1. Under the Eleventh Amendment, the Medical Board and the Boardaffiliated defendants in their official capacities are immune from all the claims alleged in the complaint. Ex Parte Young narrow exception to Eleventh-Amendment immunity does not apply, because Dr. Manion does not seek prospective injunctive relief. 2. Quasi-judicial immunity bars the claims against the Board-affiliated defendants in their individual capacities for actions on behalf of the Medical Board. 3. Qualified immunity also bars the claims against the Board-affiliated defendants in their individual capacities, because Dr. Manion has failed to plausibly allege violations of his federal rights. 4. Dr. -barred. 5. Dr. Manion has conceded that his state-law claims against the Medical Board defendants should be dismissed. 4

6 fl""ªø Ê ÔÍÛÓ+ÈÎ ±0Ê ÔÍ 2 ªºÊ Ô+ÒÌÔÒÓ+ÔÍ 7Ê Í ±8 ÓÌ 6. The complaint contains insufficient factual allegations to state a claim against the North Carolina Medical Society. 7. The arguments that support dismissal of the Medical Board and Board-affiliated defendants apply equally to NCPHP and the NCPHPaffiliated defendants. D s brief on appeal fails to cite any 8. Dr. non-merits arguments are unsupported. ARGUMENT I. ELEVENTH-AMENDMENT IMMUNITY BARS RELIEF AGAINST THE MEDICAL BOARD AND ITS OFFICIALS. The district court properly concluded that the Medical Board, as a state agency, and the Board-affiliated defendants in their official capacities are entitled to Eleventh Amendment immunity from suit in federal court. 3 Order at 7-8. That conclusion was based on controlling precedent. See Ballenger v. Owens, 352 F.3d 842, (4th Cir. 2003) (applying Eleventh-Amendment immunity to state agency and state official acting in his official capacity). 3 The district court also correctly determined that NCPHP and the NCPHPaffiliated defendants in their official capacities are likewise entitled to immunity under the Eleventh Amendment as an alter ego of the State. Order at 9-10; see ties & Special Needs v. Hoover Universal, Inc., 535 F.3d 300, 303 (4th Cir. 2008); Huang v. Bd. of Governors of Univ. of N.C., 902 F.2d 1134, 1138 (4th Cir. 1990). 5

7 fl""ªø Ê ÔÍÛÓ+ÈÎ ±0Ê ÔÍ 2 ªºÊ Ô+ÒÌÔÒÓ+ÔÍ 7Ê È ±8 ÓÌ Dr. Manion did not dispute this conclusion below. Order at 8 (citing DE 50 ( to Board Mot. to Dismiss) at 5-6). In paragraph 12 of his complaint, Dr. Manion even alleged that the Medical Board is a state agency. Dr. Manion now contends that the Medical Board is not a state agency and that the Eleventh Amendment does not apply. Informal Br. Supp , Even putting aside Dr. concessions below, this Court and many others have held that the Eleventh Amendment applies to state medical boards. See Jemsek v. Rhyne, No , 2016 WL (4th Cir. Oct. 13, 2016) (unpublished); Bettencourt v. Bd. of Registration in Med., 904 F.2d 772, 781 (1st Cir. 1990) (collecting cases). The district court also held that the Ex Parte Young exception to Eleventh- Amendment immunity for cases seeking prospective injunctive relief does not apply here. The court was correct. Under Republic of Paraguay v. Allen, 134 F.3d 622 (4th Cir. 1998), a request for injunctive, not prospective in nature. Id. at 627. That is the case here. Dr. Manion requests an injunction against the Medical, which he describes as 1 & Prayer for Relief 2. He seeks to undo the loss of his license that occurred in February His complaint requests effects Compl. 6

8 fl""ªø Ê ÔÍÛÓ+ÈÎ ±0Ê ÔÍ 2 ªºÊ Ô+ÒÌÔÒÓ+ÔÍ 7Ê Ë ±8 ÓÌ Prayer for Relief 2 (emphasis added). As this Court recently held in Jemsek v. Rhyne, No , 2016 WL (4th Cir. Oct. 13, 2016) (unpublished), a lawsuit seeking to past disciplinary action is retrospective in nature. Id. at *4. The Ex Parte Young exception therefore does not apply. II. QUASI-JUDICIAL IMMUNITY BARS RELIEF AGAINST INDIVIDUAL-CAPACITY DEFENDANTS WHO ACT ON BEHALF OF THE MEDICAL BOARD. The district court correctly concluded that members of a state medical board are immune from lawsuits about the performance of judicial or prosecutorial functions, and that physicians who evaluate their peers at the request of Medical Board are likewise shielded by immunity. Order at 11. On these points, the district court relied on controlling precedent from this Court: Ostrzenski v. Seigel, 177 F.3d 245, 249 (4th Cir. 1999). On appeal, Dr. Manion first denies that the Medical Board was engaged in prosecutorial functions because, according to him, the Medical Board does not engage in discipline. Informal Br. Supp. 17, 64. Dr. Manion is mistaken. The Medical disciplinary authority arises from N.C. Gen. Stat That authority includes the power to revoke the license of a physician who is unable to practice medicine safely, the power to require a physician to submit to a mental examination, and the power to refer a physician to NCPHP if he or she is 7

9 fl""ªø Ê ÔÍÛÓ+ÈÎ ±0Ê ÔÍ 2 ªºÊ Ô+ÒÌÔÒÓ+ÔÍ 7Ê Á ±8 ÓÌ significantly impaired by mental illness. Id (a)(5), (b). These were the precise authorities relied on in Dr. Second, Dr. Manion contends, without citation, that the North Carolina Administrative Procedure Act strips the Medical Board of any judicial or prosecutorial function. Informal Br. Supp It does not. To the contrary, the General Assembly has specifically conferred quasi-prosecutorial and quasi-judicial powers on the Medical Board. See N.C. Gen. Stat , Third, Dr. Manion argues that the Medical Board and its officials do not enjoy quasi-judicial immunity until charges are filed. Informal Br. Supp. 66. Ostrzenski rejects this notion. There, this Court applied quasi-judicial immunity to private individuals who were consulted by a state medical board to determine whether discipline should be initiated against a physician. Ostrzenski, 177 F.3d at 248. Although the consultation occurred before the board decided to issue charges, the Court held that it was part of the prosecutorial function. Id. at 250. Fourth, Dr. Manion argues that adequate procedural safeguards do not exist to protect against unconstitutional conduct by the Medical Board. Informal Br. Supp As the district court recognized in its discussion of Dr. procedural-due-process claim, appropriate procedural safeguards do exist, but Dr. Manion declined to take advantage of them. Order at 13. He therefore has no basis for claiming that these safeguards were inadequate. 8

10 fl""ªø Ê ÔÍÛÓ+ÈÎ ±0Ê ÔÍ 2 ªºÊ Ô+ÒÌÔÒÓ+ÔÍ 7Ê Ô+ ±8 ÓÌ III. QUALIFIED IMMUNITY SHIELDS THE INDIVIDUAL-CAPACITY DEFENDANTS AFFILIATED WITH THE MEDICAL BOARD. The district court also concluded that the Board-affiliated defendants were shielded from suit by qualified immunity, because Dr. to plausibly allege any violations of federal law. Order at 12. A. Procedural Due Process. Dr. Manion failed to state a procedural due process claim because he never took advantage of the process he was afforded. Instead, he inactivated his own license. Order at 13 (relying on Ashley v. NLRB, 255 F. App x707,709(4thcir. 2007) (unpublished)). He chose not to proceed to a hearing to make use of the process he was due. In this Court, he now admits that he made a considered decision not to proceed to a hearing, with the advice of counsel, because he wanted to concentrate on his separate whistleblower lawsuit and because he considered the. Informal Br. Supp. 36. On appeal, Dr. Manion raises a number of grievances that he describes as lack of oversight or review of Medical Board actions. Id. at 4-5, He also argues, without citation to authority, for a heightened due-process standard for medical professionals whose fitness to practice is being investigated. Id. at These grievances do not change the pertinent facts: Dr. Manion was afforded an administrative hearing, and he had state judicial remedies available if he disagreed 9

11 fl""ªø Ê ÔÍÛÓ+ÈÎ ±0Ê ÔÍ 2 ªºÊ Ô+ÒÌÔÒÓ+ÔÍ 7Ê ÔÔ ±8 ÓÌ with the outcome of that hearing. See N.C. Gen. Stat (administrative hearing), (b) (superior court review), (opportunity to appeal). Nor do Dr. Manion did not make use of the process that was afforded to him. Dr. Manion also newly argues that he should have been afforded an opportunity for an administrative hearing befo N.C. Gen. Stat. 150B-1 to -52. Informal Br. Supp Although he was represented by counsel, see id. at 36, Dr. Manion did not file a petition with the Office of Administrative Hearings, as the Act requires. See N.C. Gen. Stat. 150B-23(a). Moreover, the Administrative Procedure Act specifically authorizes licensing boards like the Medical Board to conduct adjudicatory hearings on disciplinary matters. Id. 150B-38. Such a hearing was available to Dr. Manion, but he declined to pursue it. See Informal Br. Supp. 36. B. Substantive Due Process. Dr. Manion failed to state a claim for a substantive due process violation, Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 80 (4th Cir. 2016). This standard requires that the official action be unjustifiable by any government interest. Snider, 739 F.3d 140, 150 (4th Cir. 2014). But 10

12 fl""ªø Ê ÔÍÛÓ+ÈÎ ±0Ê ÔÍ 2 ªºÊ Ô+ÒÌÔÒÓ+ÔÍ 7Ê ÔÓ ±8 ÓÌ according to Dr., the Medical Board investigated him because a police officer contacted the Board with concerns about mental health. Likewise, the Board warned after two physicians issued troubling reports on Compl. 47, 54-55, 68, Given these circumstances, the district court correctly held that concern for the public safety investigation of Dr. Manion and. Order at 14. Dr. Manion Informal Br. Supp. at 30; see id. at 45. That is beyond hyperbolic. The Medical Board ordered Dr. Manion to be evaluated to determine whether he was fit to serve the public, based on concerns raised by a police officer. Those concerns were then heightened by evaluations conducted by NCPHP and by two outside evaluators. Under any stretch of the imagination, these circumstances do not amount to cruel and unusual punishment or torture. C. Search and Seizure. -barred, because it is based on the evaluations that he was required to undergo. All of these evaluations occurred over three years before Dr. Manion filed suit in Order at 15. In response, Dr. Manion argues only that he stated concerns about his treatment as early as Informal Br. Supp. 22. He argues that by voicing these 11

13 fl""ªø Ê ÔÍÛÓ+ÈÎ ±0Ê ÔÍ 2 ªºÊ Ô+ÒÌÔÒÓ+ÔÍ 7Ê ÔÌ ±8 ÓÌ concerns, he satisfied the statute of limitations. However, he cites no law that would allow him to toll the statute of limitations by simply voicing objections to the actions that form the basis of his Fourth Amendment claim. D. Civil-Rights Conspiracy. Dr. -rights conspiracy claim under section 1985 failed to offer that is required to assert such a claim. Order at rd for alleging a section 1985 claim. See Simmons v. Poe, 47 F.3d 1370, 1377 (4th Cir. 1995); Compl IV. DR. MANION FAILED TO STATE A CLAIM FOR AN ADA VIOLATION AGAINST ANY DEFENDANT. The district court correctly noted that individuals cannot be sued under the ADA only public entities can. Order at 18 (citing City & Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1773 (2015)) fails as to all the individual, Board-affiliated defendants. As to the Medical Board, -barred. The district court correctly held that the two-year statute of limitations, borrowed from state law, applies to his ADA claim. Order at On appeal, Dr. Manion raises a new argument: that the statute of limitations for his ADA claim began to run only when the director of NCPHP sent Dr. Manion 12

14 fl""ªø Ê ÔÍÛÓ+ÈÎ ±0Ê ÔÍ 2 ªºÊ Ô+ÒÌÔÒÓ+ÔÍ 7Ê ÔÏ ±8 ÓÌ a copy of his evaluation, which allegedly took place in August Informal Br. Supp. 8, 25. He limitations clock was running. Id. at 25., however, contradict his new argument that he was unaware of the grounds for his ADA lawsuit until August He also fails to explain why obtaining a copy of the evaluation in 2015 suddenly made the grounds of his ADA claim apparent, or why these grounds would not have been evident when the Medical Board threatened to suspend his license based on his diagnosed mental illness in February Compl Because Dr. Manion filed his lawsuit more than two years after his claim accrued, his ADA claim is time-barred. V. DR. MANION CONCEDED THE DISMISSAL OF HIS STATE-LAW CLAIMS AGAINST THE MEDICAL BOARD AND BOARD- AFFILIATED DEFENDANTS. In the district court, Dr. Manion concede[d] without further argument the dismissal of his claims of infliction of emotional distress against the Boardaffiliated Defendants in their official capacities. DE 50 ( at 24. He offered no argument for why the claims against these defendants in their individual capacities should survive. See id. Dr. Manion 13

15 fl""ªø Ê ÔÍÛÓ+ÈÎ ±0Ê ÔÍ 2 ªºÊ Ô+ÒÌÔÒÓ+ÔÍ 7Ê ÔÎ ±8 ÓÌ now contends that he did not concede the dismissal of these claims. Informal Br. Supp The record forecloses his argument. 4 VI. THE COMPLAINT FAILED TO STATE A CLAIM AGAINST THE NORTH CAROLINA MEDICAL SOCIETY. In his lawsuit, Dr. Manion also named the North Carolina Medical Society however, was a 13- Compl complaint simply fails to allege any specific fact which would support a conclusion On appeal, Dr. Manion offers no legitimate criticism of this decision. that he could sue the Society In sum, the district court correctly dismissed the Society. 4 -law claims against the NCPHP individual defendants similarly failed. The district court correctly held that these claims are barred by the state statutory immunity that is codified in N.C. Gen. Stat (f). Order at 19. The district court also properly concluded that the applicable state statutes of limitations -distress and medical-malpractice claims. In a verified complaint that Dr. Manion filed in state court in 2012, he attested that he was well aware of the events that would have triggered limitations. Order at

16 fl""ªø Ê ÔÍÛÓ+ÈÎ ±0Ê ÔÍ 2 ªºÊ Ô+ÒÌÔÒÓ+ÔÍ 7Ê ÔÍ ±8 ÓÌ VII. THE ORDER ON APPEAL SHOULD ALSO BE AFFIRMED AS TO NCPHP AND THE INDIVIDUALS AFFILIATED WITH NCPHP. The NCPHP Defendants fully join in the arguments for why the claims against the Medical Board and Board-affiliated defendants were properly dismissed, as virtually all of the same contentions made on appeal apply equally. Additionally, as a threshold matter, Dr. Manion has abandoned appellate review as to all claims on appeal since he has failed to, among other things, cite any authorities that support his argument. Rule 28 s] argument... must contain... appellant s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant Fed. R. App. P. 28(a)(8)(A) (emphasis added). Therefore, consistent with arguments on appeal should be deemed abandoned. See Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir. 2009); Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999). (b)(6) order. Instead, the voluminous filing engages in a subjective critique of policy outside the record, ranging from claims of judicial bias to an argument that the plausibility standard announced by the United States Supreme Court does not apply here. See, e.g., Informal Br. Supp. 2-6, 79. Accordingly, the order on appeal should also be affirmed as to the NCPHP 15

17 fl""ªø Ê ÔÍÛÓ+ÈÎ ±0Ê ÔÍ 2 ªºÊ Ô+ÒÌÔÒÓ+ÔÍ 7Ê ÔÈ ±8 ÓÌ defendants. See Darocha v. City of Salem Gen. Dist. Court, 394 F. App x 8 (4th Cir. 2010) (affirming district court s order dismissing a civil complaint because pro se s disposition). VIII. DR. NON-MERITS-RELATED ARGUMENTS ALSO FAIL. A. There Was No Judicial Bias. Dr. Manion argues that the district court was biased because order, in its recitation of the facts, referred to Dr. lawsuit against his former employer. Informal Br. Supp Dr. complaint, however, cites this earlier lawsuit. Compl The district court showed no bias against Dr. Manion for reciting information that his own pleading stated. See Sine v. Local No. 992 Int l Bhd. of Teamsters, 882 F.2d 913, 914 (4th Cir. 1989) (holding that an allegation of bias is legally insufficient if it is based on information revealed in the case itself). B. There Were No Attorney Falsehoods or Court Misstatements. Dr. Manion argues that opposing counsel and the district court made misstatements of fact. Informal Br. Supp Counsel and the district court, however, merely took the facts as Dr. Manion alleged them in his complaint. See Compl The defendants did not introduce any outside evidence or factual allegations to contradict Dr.. 16

18 fl""ªø Ê ÔÍÛÓ+ÈÎ ±0Ê ÔÍ 2 ªºÊ Ô+ÒÌÔÒÓ+ÔÍ 7Ê ÔË ±8 ÓÌ C. Dr. Manion Misconstrues the Medical Board and NCPHP Authorities. Dr. Manion errs by stating that the Medical Board lacked authority to order him to undergo a psychological evaluation. Informal Br. Supp , 16. N.C. Gen. Stat (a)(5) to require a physician licensed by it to submit to a mental or physical examination by physicians designated by the Board before or after charges may be presented against the physician Dr. Manion is also incorrect to say that NCPHP has no authority to conduct peer-review activities. Informal Br. Supp The North Carolina General Assembly has specifically authorized these peer-review activities. N.C. Gen. Stat (a). As Dr. Manion recognizes in his own allegations, the Medical Board has implemented this authority in a memorandum of understanding that vests NCPHP with responsibility to investigate, review, and (under certain circumstances) report potentially impaired practitioners. Compl. 88. D. Dr. Manion Made No Allegations of idden Procedures. Dr. his rights to a hearing on his failure to comply with a Medical Board evaluation order or on his fitness to practice. Informal Br. Supp. 8, 14. These new allegations on appeal should be disregarded. concession that he made an affirmative decision, with the advice of counsel, not 17

19 fl""ªø Ê ÔÍÛÓ+ÈÎ ±0Ê ÔÍ 2 ªºÊ Ô+ÒÌÔÒÓ+ÔÍ 7Ê ÔÁ ±8 ÓÌ to proceed with an extraordinarily costly admi because he was. Id. at 36. E. Dr. Manion Never Alleged Intensive Multiparty Surveillance. Dr. appeal -party observed Id. at These allegations are new and should be disregarded. CONCLUSION For the foregoing reasons, the Defendants-Appellees respectfully request that this Court affirm the district court judgment. This 31st day of October, ELLIS & WINTERS LLP /s/ Matthew W. Sawchak Matthew W. Sawchak N.C. State Bar No matt.sawchak@elliswinters.com Thomas H. Segars N.C. State Bar No tom.segars@elliswinters.com Paul M. Cox N.C. State Bar No paul.cox@elliswinters.com P.O. Box Raleigh, NC Telephone: (919) Fax: (919) Counsel for Appellees North Carolina Medical Board, R. David Henderson, Scott G. Kirby, M.D., Cheryl Walker-McGill, 18

20 fl""ªø Ê ÔÍÛÓ+ÈÎ ±0Ê ÔÍ 2 ªºÊ Ô+ÒÌÔÒÓ+ÔÍ 7Ê Ó+ ±8 ÓÌ M.D., Paul S. Camnitz, M.D., William A. Walker, M.D., Ralph C. Loomis, M.D., Janice E. Huff, M.D., and Pascal Udekwu, M.D. POYNER SPRUILL LLP /s/ Andrew H. Erteschik (with permission) Andrew H. Erteschik N.C. State Bar No aerteschik@poynerspruill.com John Michael Durnovich N.C. State Bar No P.O. Box 1801 Raleigh, NC Telephone: (919) Fax: (919) Counsel for Appellee North Carolina Medical Society WILSON & HELMS LLP /s/ G. Gray Wilson (with permission) G. Gray Wilson N.C. State Bar No gwilson@wilsonhelms.com Lorin J. Lapidus N.C. State Bar No llapidus@wilsonhelms.com 110 Oakwood Drive, Suite 400 Winston-Salem, NC Telephone: (336) Fax: (336) Counsel for Appellees North Carolina Physicians Health Program, Inc., Warren 19

21 fl""ªø Ê ÔÍÛÓ+ÈÎ ±0Ê ÔÍ 2 ªºÊ Ô+ÒÌÔÒÓ+ÔÍ 7Ê ÓÔ ±8 ÓÌ Pendergast, M.D., Gregory W. Taylor, M.D. and David D. Collins, M.D. 20

22 fl""ªø Ê ÔÍÛÓ+ÈÎ ±0Ê ÔÍ 2 ªºÊ Ô+ÒÌÔÒÓ+ÔÍ 7Ê ÓÓ ±8 ÓÌ CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P. 28.1(e)(2) or 32(a)(7)(B) because: [ X ] this brief contains [3968] words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or [ ] this brief uses a monospaced typeface and contains [state the number of] lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: [ X ] this brief has been prepared in a proportionally spaced typeface using [Microsoft Word 2010]in[14pt Times New Roman]; or [ ] this brief has been prepared in a monospaced typeface using [state name and version of word processing program]with[state number of characters per inch and name of type style]. Dated: October 31st, 2016 /s/ Matthew W. Sawchak Matthew W. Sawchak /s/ Andrew H. Erteschik Andrew H. Erteschik /s/ G. Gray Wilson G. Gray Wilson Counsel for Appellees 21

23 fl""ªø Ê ÔÍÛÓ+ÈÎ ±0Ê ÔÍ 2 ªºÊ Ô+ÒÌÔÒÓ+ÔÍ 7Ê ÓÌ ±8 ÓÌ CERTIFICATE OF FILING AND SERVICE I hereby certify that on this 31st day of October, 2016, I caused this Memorandum Brief of Appellees to be filed electronically with the Clerk of the Court using the CM/ECF System, which will send notice of such filing to registered CM/ECF users. I further certify that on this 31st day of October, 2016, I served a copy of this brief by U.S. mail on the party addressed below: Kernan Manion P. O. Box 7141 Gloucester, MA Pro Se Appellant /s/ Matthew W. Sawchak Matthew W. Sawchak /s/ Andrew H. Erteschik Andrew H. Erteschik /s/ G. Gray Wilson G. Gray Wilson Counsel for Appellees 22